South Africa's Proposed Fair Use Right In Copyright Bill Is Surprisingly Good -- At The Moment

from the stand-back-for-the-lobbyist-attacks dept

Too often Techdirt writes about changes in copyright law that are only for the benefit of the big publishing and recording companies, and offer little to individual creators or the public. So it makes a pleasant change to be able to report that South Africa's efforts to update its creaking copyright laws seem, for the moment, to be bucking that trend. Specifically, those drafting the text seem to have listened to the calls for intelligent fair use rights fit for the digital world. As a post on infojustice.org explains, a key aspect of copyright reform is enshrining exceptions that give permission to Internet users to do all the usual online stuff -- things like sharing photos on social media, or making and distributing memes. The South African text does a good job in this respect:

A key benefit of the Bill is that its new exceptions are generally framed to be open to all works, uses, and users. Research shows that providing exceptions that are open to purposes, uses, works and users is correlated with both information technology industry growth and to increased production of works of knowledge creation.

The solution adopted for the draft of the new copyright law is a hybrid approach that contains both a set of specific modern exceptions for various purposes, along with an open general exception that can be used to assess any use not specifically authorized:

The key change is the addition of "such as" before the list of purposes covered by the right, making the provision applicable to a use for any purpose, as long as that use is fair to the author.

In order to test whether a use is fair, the standard four factors are to be considered:

(i) the nature of the work in question;

(ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work;

(iii) the purpose and character of the use, including whether --

(aa) such use serves a purpose different from that of the work affected; and
(bb) it is of a commercial nature or for non-profit research, library or educational purposes; and

(iv) the substitution effect of the act upon the potential market for the work in question.

Crucially, the legislators rejected calls by some to include a fifth factor that would look at whether licenses for the intended use were available. As the infojustice.org post points out, had that factor been included, it would have made it considerably harder to claim fair use. That's one reason why the copyright world has been pushing so hard for licensing as the solution to everything -- whether it's orphan works, text and data mining, or the EU's revised copyright directive. That rejection sends an important signal to other politicians looking to update their copyright laws, and makes the South African text particularly welcome, as the infojustice.org post underlines:

We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age.

However, for that very reason, the fair use proposal is like to come under heavy attack from the copyright companies and their lobbyists. It remains to be seen whether the good things in the present Bill will still be there in the final law.

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Filed Under: copyright, fair use, south africa, user rights


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  1. icon
    That One Guy (profile), 26 Jul 2018 @ 6:21pm

    Re: Re: Re: Re: Ah the classic 'the only fair use is paid use.'

    That's still very problematic, as either the limits would have to be clearly set (and thus cause many problems with edge cases or things that haven't been considered yet) or so wooly that they'd still need a court battle to settle.

    I was thinking more of a 'this category of things are considered fair use, and as an example this in particular would fall within that category, so would be considered fair use', where you'd still have general categories(education, parody and so on) covered, with specific uses made clear as examples of 'and this is what that sort of thing looks like in practice'.

    I'd also say a licence would be much easier to modify than the law in most cases, although as we've said that also makes it easier to revoke.

    And if individuals wanted to offer 'fair use licenses', such that they made clear that use of their stuff in a particular way wasn't infringement and wouldn't result in legal action I'm perfectly fine with it, my objection is to adding 'could use X have been licensed?' added to the law as part of the fair use test.

    I can't think of any solution that wouldn't cause a court issue if one side decides to press hard enough. I'm just saying that, in response to your original comment, that including the need for a licence would not necessarily have to be a death sentence for fair use.

    Immediately, perhaps not, my concern is feature creep, based upon the numerous expansions of copyright law.

    Implement a legal test of 'could you have licensed it?' and it's a given that the scope will be pushed by the usual groups, arguing that it's much 'clearer' with 'less confusion' if the limits of what is and is not 'fair use' are laid out in the form of licensing, followed by arguments that if someone could have acquired a licence and didn't then it should be seen as an indication of at the very least possible infringement.

    Those that worship at the alter of The Almighty Copyright have shown that if you give them an inch they'll run a cross-country marathon with it, such that it's better not to give them an opening to begin with, and the precedent of tying fair use to licensing strikes me as something they would very quickly take advantage of to the detriment of fair use as a whole.


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